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April 4, 2015

In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)

With respect to sentencing policy and procedure, I frequently disagree with the current Chair of the Senate Judiciary Committee, Charles Grassley. But on the topic of federal court transparency, I surmise that Senator Grassley and I have very similar views as evidence by this new National Law Journal op-ed penned by the Senator. The piece is headlined "Legislation Allowing Cameras in the Courtroom More Important Than Ever, and here are excerpts:

In [the Boston Bombing] high-profile case and countless others, the mechanics of our criminal justice system work day in and day out to provide equal justice under the law. Before a jury of peers, prosecutors make the government's case on behalf of the people, and the defense works to give the accused a fair trial. America's system of justice, including our bedrock constitutional principles guaranteeing due process, a fair and speedy trial, and the right to counsel, is a tangible right of citizenship that too often goes unnoticed. That's because a majority of Americans aren't able to look under the hood to see it — at least not in federal courts, which ban cameras from their courtrooms.

The federal trial in Boston carries significant public interest. And yet, the ban on cameras disallows the public to bear witness to the public proceeding. Courtroom sketches and tweets from reporters arguably don't do justice for most people, especially those who have a keen interest to see justice served.

In this day and age when the American public is hard-wired to access what they want to see, when they want to see it, it's hard to square the injustice of essentially banning broad civic engagement from our judicial system by banning cameras from the federal courtroom.

Blockbuster trials certainly ­generate a lot of attention. They renew ­interest in something I've been working to achieve for nearly two decades. And that is to unlock the federal courtroom door to cameras. As a co-equal branch of the federal government, the federal judiciary serves a fundamental function in our ­system of self-government. It alone interprets the constitutionality of laws passed by Congress and managed by the executive branch. Although removed from electoral politics by constitutional design, the federal judiciary and Article III judges are not part of a royal class or monarchy. The federal judiciary is the custodian of constitutional rights and providing equal justice under the law. If anything, the federal judiciary ought to be the first to throw open the shutters to bring this extraordinary branch of government to life for ordinary Americans.

As a longtime crusader for more transparency, I've worked to spread sunshine through the halls of the federal government. Transparency, and the accountability that comes with it, renews credibility in our institutions of government and strengthens our free and open society. The same goes for civic engagement. Allowing courtroom proceedings to be broadcast would give more citizens an opportunity to develop a better appreciation for the federal judiciary and how the wheels of justice serve the public good.

With very few exceptions, the public's business ought to be public. Period. My leadership on this issue has prompted a few steps in the right direction, such as the adoption of pilot programs to allow cameras into some federal courts. The most recent program was launched in 2011 and includes 14 federal trial courts. So far, the sky has not fallen and the program will wrap up this summer. The courts will report back to Congress next year.

Each of the 50 states allows some level of camera access in their courtrooms. As far as I know, the recording and broadcasting of state trials haven't turned the carriage of justice into a pumpkin. To me, it's a miscarriage of justice that the 20th century courtroom camera ban still exists in the 21st century at the federal level....

[M]y bipartisan bill would allow the presiding judge discretion to protect the privacy of witnesses and private conversations among clients, lawyers and the judge. It prohibits the televising of jurors and includes measures to protect due process rights. The bipartisan verdict on this issue exceeds reasonable doubt. Allowing cameras into the federal courtroom would foster better civic engagement with our courts of law and, ultimately, strengthen the court of public opinion about the integrity of our judicial system in American society.

The burden of proof is clear. It's time to lift this arbitrary barrier to transparency. Let's end the camera ban and raise the bar on good government.

I could not agree more strongly with this forceful assertion by Senator Grassley: "With very few exceptions, the public's business ought to be public. Period." Now I just wish Senator Grassley would come to understand that his righteous commitment to transparency and accountability in the federal criminal justice system is deeply undermined by his steadfast support for federal mandatory minimum sentencing statutes and the extraordinary hidden power they place in the hands of unelected federal prosecutors.

Existing federal mandatory minimum statutes enable federal prosecutors to make profoundly consequential sentencing decision behind closed doors without any explanation, transparency or accountability. The US Sentencing Commission and others have frequently documented the profound sentencing impact of the hidden charging and bargaining decisions made by federal prosecutors using mandatory minimum sentencing provision. It is near impossible to even know what decisions are being made by prosecutors in the use of mandatory minimum sentencing provisions, let alone to assess effectively the legitimacy of the factors employed by prosecutors in their charging and bargaining decisions, because prosecutors need never explain or justify these sentencing decisions in any way.

My general disaffinity for federal mandatory minimum sentencing statutes is deeply based in my strong belief that "the public's business ought to be public." Because it seems Senator Grassley is truly and deeply committed to the values of transparency and accountability in the federal criminal justice system, I hope he will at some point come to understand how his support for federal mandatory minimums problematically disserve these critical values.

Comments

Not only federal/state/local courts but "lawmaking" itself should always be transparent. Try to find out which members of Congress "the native American criminal class" voted for the 2006 POS Adam Walsh Act. There is no roll call that I can find. It was passed by both Houses by "voice vote" whatever that means. You cannot even find if a quorum was present.

No, secrecy in the prosecutorial, legislative, executive and judicial offices is how a "free society" does business. Keep on swallowing the lie about how free we really are.

Posted by: albeed | Apr 4, 2015 5:48:04 PM

Are you guys willing to expose corner cutting and shady dealing in the passage of legislation with which you agree?

As Bill would say, go to trial. Even without any money, a defendant may represent himself and have the chances of a verdict slightly better than if he was represented. The judge will bend over backwards to assist the pro se litigant, and the prosecutor will not want to get all procedural to avoid looking like a legal bully to the jury.

When judges have full discretion, are you willing to have racial disparities in sentencing based on the race of the judge. For example, Judge Sotomayor had a real soft spot for vicious, ultra-violent black and Latino thugs. She went in to dizzying, froth at the mouth rages at white defendants who violated some federal regulation. Is that vile feminist lawyer's mood swings OK in sentencing formulation?

As a bottom line, take home question, will it be OK when the crime rates, including murders, zooms up, as they did under the regime of the pro-criminal judges of the 1960's and 1970's?

How will today's judges differ from the past, unless human nature has changed in 40 years? They will not. Their jobs come from the criminal. Scare the criminal, end crime, lose your job. The judges get nothing from the victim, and it may rot.

There was an Israeli study of sentencing, cited here. If the criminal went before the judge after lunch, the sentences for matched crimes were significantly lighter. So if you want to influence a Jewish judge, don't bother with an attempt to bribe. Give the bailiff a fresh Pastrami Special to hand to the judge in chambers.

According to Grassley, mandatories are necessary because of all the Terrorist that are pushing drugs. Right. Chuck, name one.

Please retire soon, we need a young fresh mind and a body that is mobile.

Next is workable.

Posted by: MidWestGuy | Apr 5, 2015 3:47:28 PM

Mid. A episode of the Sopranos, yes, is fictitious, nevertheless always highly accurate, had another insight to contribute.

A member of the jury in the trial of Tony's uncle was in a convenience store. His young son bought a chocolate bar. Two thugs interrupt and say, "Your money is no good, let us buy that for you. We think your service on the jury is a great thing you are doing." There ensues a hung jury with only one holdout. Do you understand that?

Mandatory guidelines put the judge out of range for bribery, intimidation, pressure and violence. It is for the own good of the judges as well, keeping them safer, if they have no control over sentencing.

Prof. Berman was too young to recall the crack epidemic. But when we say, non-violent drug dealer, that is absolutely mistaken. Those were busy serial killers protecting their territories. One of them was chased into the lobby of my parents' apartment, and was blasted, begging for his life, in front of a bunch of neighbors. Those dealers were effectively immunized, and did not bother disguising or in any way hiding their identities. The same scene took place on the crowded streets of Harlem in American Gangster, a true story.

[Off topic. In that movie, an incorruptible police officer returns $2 million he finds in cash in the trunk of a car. So, with surround sound corruption, he is a very rare honest police officer. He gets named to lead the task force to take down the big wigs. He does a good job. That includes a $100 million restitution by Frank Lucas. Naturally, I have no doubt that was only a small fraction of his assets.

Here is what makes my point about 1L. The officer passes the bar exam in New Jersey. He becomes Lucas's appellate lawyer and manages to markedly shorten his sentence, sets him free after a few years only. This was before the mandatory guidelines. The movie does not say, but I have zero doubt, Lucas said, get me out, I give you $million. The police officer the harsh streets could not corrupt? Once a lawyer, he does a good job of freeing the same man he spent years taking down.]

I understand why there are mandatories. But out of 1000 drug cases maybe only a few are the garden variety. Therefore we cannot hamer everyone just to cover the rare exception.

The feds have so much power to sentence what they want. Guidelines arenot madatory.

Therefor mandatory minimums need to go away. They hammer everyone and like it.

Posted by: MidWestGuy | Apr 5, 2015 11:53:07 PM

Mid. It is just unknown how many non-violent drug offenders are serial killers as Frank Lucas was. He refuses to discuss murder because there is no statute of limitations.

Tell me if I misunderstand you. You believe the adjudicated, fictitious crime is too mild for the harsh sentences. You do not like the unfairness. That makes you a just deserts person, a retributionist, who believes in a proportionality between crime and punishment. The less harmful the crime, the less severe the sentence.

I am a strictly an incapacitation person. For example if 3 in 123D is shoplifting but the defendant is a mass murdering drug kingpin, I strongly support a mandatory death penalty for shoplifting. The idea is the same as in the Capone matter. Could not be convicted on the St. Valentine's Day massacre,but the public was screaming in outrage. They got him on paperwork problems, paying income taxes, and he spent the rest of his life in federal prison, wracked by tertiary syphilis, as tax payer expense, but I support that.

Right, shoot one hundred people to get the one bad guy (or more accurately, you think is bad guy). That is the C&C philosophy, no wonder you admire one blogger there a wee bit much, ya think.

Posted by: albeed | Apr 6, 2015 8:23:02 AM

"Therefore we cannot hammer everyone just to cover the rare exception."

Well, we don't. There is a safety valve provision, which allows those who are truly undeserving of MMs to escape them. There is also a cooperation provision, which allows those who provide substantial assistance to avoid MMs. And, according to recent USSC statistics, less than 50% of all drug offenders who faced a MM were actually sentenced based on the MM--in other words, over 50% of drug offenders gain relief from the MM through the safety valve or cooperation.

Posted by: hmmm | Apr 6, 2015 10:00:51 AM

@hmmm

Most drug offenders have a healthy criminal history. Owi, fail probation, a domestic, maybe petty theft.

The safety valve is for saints. Few qualify for it. Therefore the m$m must go.

Posted by: MidWestGuy | Apr 6, 2015 11:10:42 AM

I would support changing 3553(f) from 1 criminal history point to 2 criminal history points.

Posted by: hmmm | Apr 6, 2015 11:48:05 AM

Albeed. It's really shoot 100 people, save 1000 victims, and add $billion to the economy. Biggest problem, you also lose 10 lawyer and police jobs from the lower crime rate. They will never allow that to happen.

hmmmm. If I may ask a personal question. I have never correctly calculated a mandatory sentence in theoretical exercise questions. Being in the field, is that easy or hard for you to get correct, ahead of the sentencing hearing, for the purpose of a discussion with a client? Has anyone made a claim of lawyer malpractice for an arithmetical error in this computation?